United States District Court, N.D. Illinois, Eastern Division
Celina M. Marciniak, Plaintiff,
Megan J. Brennan, Defendant.
MEMORANDUM OPINION AND ORDER
M. DURKIN JUDGE
Celina M. Marciniak filed this lawsuit alleging she was
discriminated against based on a disability when she was
forced to resign from her job with the U.S. Postal Service
(“USPS”). Defendant Megan J. Brennan, Postmaster
General, filed a motion for summary judgment pursuant to Rule
56 of the Federal Rules of Civil Procedure. R. 38. For the
reasons that follow, the Court grants Defendant's motion.
judgment is appropriate “if the movant shows that there
is no genuine dispute as to any material fact and the movant
is entitled to judgment as a matter of law.”
Fed.R.Civ.P. 56(a); see also Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). The district court
considers the entire evidentiary record and must view all of
the evidence and draw all reasonable inferences from that
evidence in the light most favorable to the nonmovant.
Ball v. Kotter, 723 F.3d 813, 821 (7th Cir. 2013).
To defeat summary judgment, a nonmovant must produce more
than “a mere scintilla of evidence” and come
forward with “specific facts showing that there is a
genuine issue for trial.” Harris N.A. v.
Hershey, 711 F.3d 794, 798 (7th Cir. 2013). Ultimately,
summary judgment is warranted only if a reasonable jury could
not return a verdict for the nonmovant. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
following facts are undisputed unless otherwise noted.
Marciniak began working for the USPS in August 2014 as a City
Carrier Assistant at the DeKalb, Illinois Post Office. She
was hired as a temporary appointment that expired July 27,
2015. R. 40, 45 (¶ 1). On either August 26 or 27, 2014,
Marciniak sprained her right ankle while delivering mail. R.
40 (¶ 16); R. 45 (¶ 8). After recovering from her
injury, she was evaluated as fit for duty with no
restrictions. But she still suffered pain and had to tape her
ankle. R. 40 (¶ 16); R. 45 (¶ 9). She returned to
work on September 9, 2014. A few days later, she was told to
go home and not to return until her supervisor called. R. 40
(¶ 16); R. 45 (¶ 10). She was called back to work on
September 16, 2014. That morning, just as she was clocking
in, the Postmaster asked her to come into his office,
whereupon he informed her that, because she was injured, he
was giving her a choice to resign or be fired. Marciniak
further alleges that the Postmaster informed her that if she
was fired, she could never apply for a position with the post
office again, so she resigned. R. 40 (¶ 17); R. 45
(¶ 11); R. 25 at 72.
Local Rule 56.1
initial matter, USPS argues that Marciniak has failed to
comply with Local Rule 56.1. See R. 47 at 2-6. While
pro se litigants are required to comply with the
local rules regarding summary judgment filings, Marciniak has
made a good faith effort to do so. Her response did not
comply with all aspects of the local rule, but even attorneys
frequently violate many of the Rule's requirements. The
factual issues in this case are not complex, and
Marciniak's noncompliance did not interfere with the
Court's ability to discern the disputed facts from the
undisputed ones. Given these circumstances, the sincerity and
earnestness with which Marciniak has pursued her claims, her
good faith in attempting to satisfy Local Rule 56.1, the
judicial resources that would have to be expended to address
USPS's arguments based on the local rule, and the
judicial preference for resolving cases on the merits, the
Court declines to apply Local Rule 56.1 strictly as suggested
by USPS. The Court instead will consider the parties'
fact statements in conjunction with the record itself to
determine the undisputed facts and resolve USPS's motion.
Timeliness Of Marciniak's EEOC Complaint
a federal employee may bring a civil action for
discrimination against her employer, the employee first must
exhaust her administrative remedies. Green v.
Brennan, 136 S.Ct. 1769, 1775 (2016) (citing 42 U.S.C.
§ 2000e-16(c)). To exhaust those administrative
remedies, EEOC regulations require, inter alia, that
an aggrieved federal employee claiming employment
discrimination “must initiate contact with a[n Equal
Employment Opportunity (“EEO”)] Counselor within
45 days of the date of the matter alleged to be
discriminatory or, in the case of personnel action, within 45
days of the effective date of the action.” 29 C.F.R.
§ 1614.105(a)(1). “This deadline is construed as a
statute of limitations and not as a jurisdictional
prerequisite.” Johnson v. Runyon, 47 F.3d 911,
917 (7th Cir. 1995).
undisputed that the adverse employment action at issue,
Marciniak's forced resignation, occurred on September 16,
2014. R. 1 at 5. The 45-day period in which Marciniak was
required to have contacted an EEO counselor thus expired on
October 31, 2014. Marciniak's first contact with an EEO
counselor did not occur until February 17, 2015, one hundred
fifty-four days after her termination. In short, the facts
are undisputed that Marciniak failed to satisfy the 45-day
statute of limitations.
the rule is not jurisdictional, claims will be “barred
if the forty-five day requirement is not satisfied and there
is no occasion for equitable tolling.” Doe v.
Oberweis Dairy, 456 F.3d 704, 708 (7th Cir. 2006);
see also Ester v. Principi, 250 F.3d 1068, 1071 (7th
Cir. 2001). Accordingly, USPS's motion for summary
judgment turns on whether Marciniak's failure to satisfy
the 45-day requirement is excused because the statute of
limitations was tolled. See Everage v. Runyon, 998
F.2d 1016, 1993 WL 272503, at *3 (7th Cir. 1993)
(unpublished) (“where the plaintiff has failed to
contact the EEO counselor in a timely fashion, he must be
given the opportunity to raise equitable arguments, such as
tolling, waiver, and estoppel, that might excuse his failure
to comply with the time limitation. Should the plaintiff fail
to justify his tolling the limitations period, his case must
be dismissed.”). Marciniak offers several reasons why
equitable tolling should be applied here. The Court addresses
each of those arguments below.
Tolling Based On Marciniak's Filing Of MSPB
argues that she should be excused from the 45-day EEO
counselor contact rule because she “read online”
that she could file either a complaint with the Merit Systems
Protection Board (“MSPB”) or a discrimination
complaint with the agency-employer, that “it turns
out” the MSPB did not have jurisdiction over her
complaint, and that she “did not know this until the
MSPB ruling.” R. 44 at 1.
MSPB hears and adjudicates disputes concerning personnel
actions taken by the federal government against employees
covered by the Civil Service Reform Act, 5 U.S.C. § 1101
et seq. “A federal employee aggrieved by a
personnel action that is reviewable by the MSPB has two paths
of redress if he attributes the employing agency's
decision, at least in part, to discriminatory animus. One
option is to file with the agency a ‘mixed case
complaint'-an administrative complaint alleging
prohibited employment discrimination . . . . The second
option is to bypass the agency's administrative process
and file a ‘mixed case appeal' directly
with the MSPB.” McCarthy v. Vilsack, 322 F.
App'x 456, 457-58 (7th Cir. 2009) (internal citations
omitted) (emphasis added); see 29 C.F.R. §
sought redress for her forced resignation using the second
route- a mixed case appeal with the MSPB-which she filed on
November 26, 2014. In a decision issued on January 26, 2015,
the MSPB dismissed Marciniak's appeal for lack of
jurisdiction, finding as follows:
The Board has jurisdiction to hear appeals that allege
involuntary resignation. However, the Board lacks
jurisdiction to hear such cases if the employee's status
takes the case out of the Board's purview. [citing,
inter alia, Link v. Department of the Navy, 3
M.S.P.R. 187, 189 (1980) (the appellants' alleged
involuntary resignations during their probationary periods in
lieu of termination provided them with no greater right of
appeal to the Board than they would have had if they had been
terminated during their probationary periods)].
That is the case here. The appellant, who worked for the
agency for less than two months, has no right to appeal her
involuntary resignation claim to the Board. . . .
Temporary employees do not qualify for restoration rights
unless they were appointed to the temporary position pending
establishment of a register (a “TAPER”
appointment). The appellant was appointed a City Carrier
Assistant as a temporary employee whose appointment was
time-limited, expiring on a specific ...